(On the Notice of Motion by the 5th Interested Party dated 24th July 2026, seeking a stay and review of the Judgment delivered on 17th June 2026)
A. INTRODUCTION
1. A judgment of this Court, once delivered, is not a proposition left open for indefinite renegotiation at the instance of a party who finds its consequences inconvenient. The jurisdiction to review a judgment is a narrow and jealously guarded exception to the ordinary rule that a court, having pronounced its final decision, becomes functus officio in relation to it. That jurisdiction exists to correct a manifest injustice traceable to matters that pre-dated the judgment and which eluded the diligence of the party now invoking it, or to correct an error self-evident on the face of the record. It was never intended to furnish a disappointed litigant, or one aligned with a disappointed litigant, a fresh forum in which to re-argue a cause already determined, still less to accommodate every development that surfaces in the course of implementing an order that has since acquired full legal force. It is against that settled learning that the application now before me falls to be examined.
2. By a Notice of Motion dated 24th July 2026, brought under Article 159 of the Constitution of Kenya, 2010, Order 45 of the Civil Procedure Rules, 2010, Sections 1A and 1B of the Civil Procedure Act, and the inherent jurisdiction of this Court, the 5th Interested Party, Kibiby Omeri ("the Applicant"), seeks, in substance, two things: first, an interim stay of order (ii) of the Judgment of this Court delivered on 17th June 2026, pending the hearing and determination of the Motion; and second, a review — expressly restricted to order (iv) of that Judgment — touching the composition and continued capacity of the Election Board directed to conduct and oversee the fresh elections of the 1st Interested Party, the Dock Workers Union ("the Union"). The Motion is resisted, with equal conviction, by the 1st and 2nd Petitioners and by the 3rd Petitioner.
B. THE HISTORY OF THE CONTROVERSY
3. The application does not arise in a vacuum, and its history bears directly on its disposal. By the Judgment delivered on 17th June 2026, this Court found that the purported election of the Union's national officials held on 4th April 2026 had been conducted in disregard of the Union's Constitution and of the democratic values enshrined in Articles 10 and 41 of the Constitution of Kenya. The Court declared that election a sham, nullified it in its entirety together with the registration of the officials purportedly returned, and directed that fresh elections be conducted within sixty days — to be conducted and overseen by the Election Board that had been in office immediately before that sham election.
4. That outcome did not rest easily with the 2nd Respondent, Sulman Otieno Owuor, whose purported election as General Secretary the Judgment had unmade. He, together with certain Interested Parties, moved this Court for a stay of execution of the Judgment pending an intended appeal. By a Ruling delivered on 20th July 2026, this Court declined that prayer, holding that the Judgment remained valid, binding and in full force; that a nullity pronounced ab initio could not sensibly be preserved in suspended animation by an order of stay; and that the public interest in the timely and lawful governance of a Union of several thousand members weighed decisively against further delay. It bears noting, for what follows, that it was in that very application, through Supplementary Affidavits filed in its support, that the composition of the Election Board was raised for the first time — on the footing that some of its members had, since their original appointment, been elevated to management positions with their employer. The Court took note of that complaint but declined to determine it, holding that it had not been properly pleaded or ventilated in a manner permitting determination at that interlocutory stage, and that it fell to be canvassed in another, more appropriate forum.
5. The 2nd Respondent's resistance to compliance persisted. Upon an application by the 3rd Petitioner for implementation and enforcement directions, this Court found, by a Ruling delivered on 30th July 2026, that the 2nd Respondent's conduct had placed the sixty-day compliance period at real risk of lapsing without compliance, and accordingly issued specific implementation directions in favour of the National Executive Committee and the National Chairperson of the Union, calculated to ensure that the electoral process the Judgment had set in motion was not stifled by further obstruction.
6. It is against that detailed, and by now extensively litigated, background that the Applicant brings the present Motion.
C. THE APPLICATION AND ITS GROUNDS
7. By the Notice of Motion dated 24th July 2026, supported by the Applicant's affidavit sworn on even date and later amplified by a Supplementary Affidavit sworn on 11th August 2026, the Applicant seeks orders: that the Motion be certified urgent; that, pending its hearing and determination, order (ii) of the Judgment — requiring the conduct of fresh elections — be stayed; that this Court review order (iv) of the Judgment and issue such orders or directions as will ensure that the fresh elections are conducted in accordance with the Union's Constitution; and costs.
8. The grounds on the face of the Motion, repeated in the founding affidavit, are these. Of the nine members of the Election Board directed by the Judgment to conduct and oversee the fresh elections, five — Yvonne Ngutu, Marco Aden, Joshua Kasera, Rajab Musa and Edwin Berech — have since been elevated to management positions within the Kenya Ports Authority and can, on that account, no longer participate in union affairs; only Frederick Bayah, Karimu Mwendo and James Kazungu remain eligible; the Board, so depleted, lacks the quorum prescribed by the Union's Constitution to conduct and oversee elections; the Acting Registrar of Trade Unions raised the identical concern in a letter dated 9th July 2026; and, given the diminishing sixty-day compliance period, the matter required urgent attention. On that footing, the Applicant asks the Court to review the Judgment, there being, in her submission, sufficient reason to do so.
9. The Supplementary Affidavit sworn on 11th August 2026 — filed, it must be observed, only after the Respondents had already put in their opposition to the Motion — introduces, for the first time, a further and distinct complaint. The Applicant now avers that the Election Board, even shorn of the five members said to have been promoted, remains conflicted, in that its remaining and prospective members are drawn from management, whereas the very object of the Union is to protect unionisable employees from the excesses of that same management; that the Board has, in preparing for the fresh elections, summarily excluded her from the ballot by declaring the position of National Treasurer — for which she is a contestant — unopposed; that the persons said to give rise to the conflict had in fact left the Union some two years before the impugned election of 4th April 2026, which she says explains the need to reconstitute the Board before elections could proceed; and that, while the Union's Constitution permits non-members to sit on the Election Board, it does not extend to persons conflicted by reason of holding managerial office or office in a rival union. She further avers that, although this Court has already pronounced upon the composition of the Election Board in ELRC Cause No. E066 of 2026, it did not, in her submission, determine the distinct question of conflict of interest, and that the Court had itself indicated that the proper forum for these matters was the present Petition rather than a separate suit. Finally, she avers that she has abandoned any interest in pursuing an appeal against the Judgment, and that nothing therefore bars her from seeking its review.
D. THE OPPOSITION
10. The 1st and 2nd Petitioners oppose the Motion through the Replying Affidavit of the 1st Petitioner, Matano Omar Shakombo, sworn on 11th August 2026. It is deposed that the Applicant has moved the Court of Appeal, in Civil Application No. E088 of 2026, seeking a stay of the very orders of this Court now sought to be reviewed, without disclosing that pending application to this Court, and has thereby approached this Court other than with clean hands; that the Applicant's own affidavit admits to having lodged an appeal against the Judgment in its entirety; that the issues she now raises were already placed before this Court, on behalf of her side of the dispute, through the Supplementary Affidavit filed in the very application determined by the Ruling of 20th July 2026, such that the matter is functus officio and the present application res judicata; and that the Applicant was, well before instructing her present advocates, fully alive to the matters she now raises, they having already been canvassed on her behalf by her then advocates on record. The 1st and 2nd Petitioners contend that the Motion is bad in law, an abuse of the process of the Court, and vexatious, and pray that it be dismissed with costs.
11. The 3rd Petitioner, Justine Muranja Angore, opposes the Motion through a Notice of Preliminary Objection and Grounds of Opposition dated 30th July 2026, and written submissions dated 10th August 2026. The burden of his opposition is that the Judgment of 17th June 2026 finally and conclusively determined, after a full hearing on the merits, that the election of 4th April 2026 was null and void, and that none of the substantive findings underlying that conclusion has been shown to be erroneous; that the Applicant's complaint rests entirely on an administrative change in the employment status of certain Board members occurring after the Judgment, and discloses neither an error apparent on the face of the record nor any proper ground for review; that the very issue now relied upon has already been placed before, and substantively addressed by, this Court in ELRC Cause No. E066 of 2026, in which, by a Ruling delivered on 31st July 2026, the Court declined to restrain the reconstituted Election Board from proceeding with the fresh elections and expressly permitted it to do so pending the final determination of that Cause; that the present Motion is accordingly duplicative of relief already sought and declined; that the Applicant's own affidavit is internally inconsistent, professing no interest in pursuing an appeal while simultaneously seeking, through review, precisely the suspension of the Judgment an appeal would ordinarily be intended to secure; and that granting the orders sought would unjustifiably delay elections to which some 5,742 members of the Union are constitutionally entitled, under Article 41 of the Constitution, to have conducted fairly, freely, and without further impediment. The 3rd Petitioner prays that the Motion be dismissed with costs.
E. ISSUES FOR DETERMINATION
12. The following issues arise for determination:
(a) whether the Supplementary Affidavit sworn on 11th August 2026, and the ground of conflict of interest raised in it for the first time, are properly before the Court;
(b) what the applicable conditions for review under Order 45 of the Civil Procedure Rules are, and whether the Applicant has satisfied them;
(c) whether the application is, in any event, barred by the doctrine of res judicata;
(d) whether the pendency of the Applicant's Notice of Appeal, and of Court of Appeal Civil Application No. E088 of 2026, renders the present Motion improper; and
(e) whether the allegation that the Chairperson faces disciplinary proceedings bears on his eligibility to hold office.
F. ANALYSIS AND DETERMINATION
(i) The late introduction of new grounds by supplementary affidavit
13. I deal first with a threshold matter. This Court's rules, and the overriding objective that animates them under Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act, undoubtedly clothe the Court with wide case-management powers, including the power to permit the filing of documents, and indeed additional documents, at various stages of a proceeding where the interests of substantive justice so demand. That liberality, however, is not unbounded, and it contracts markedly once an application has been filed, setting forth detailed grounds on the face of it and in the supporting affidavit and the application duly responded to by the adversaries Once this is done, the Applicant may not, as of right, reopen the evidential record by the simple expedient of filing a further affidavit. That the Applicant did so without leave, and without any attempt to justify the lateness of the new material, is itself telling, and I return to its consequences below.
(ii) The conditions for review under Order 45
14. Order 45 Rule 1 of the Civil Procedure Rules, 2010, read with Section 80 of the Civil Procedure Act, permits any person considering himself aggrieved by a decree or order to apply for review on one of three grounds: the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time the decree or order was passed; some mistake or error apparent on the face of the record; or any other sufficient reason. The Court of Appeal, in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, affirmed that these are the only grounds upon which the jurisdiction to review may be exercised, and that a review is not an appeal in disguise enabling an unsuccessful party to reargue its case in the hope of a different outcome.
15. The third limb — "sufficient reason" — has never been left at large. In Nyamogo & Nyamogo Advocates v Kogo [2001] 1EA 173, it was held that the phrase must be construed ejusdem generis with the two grounds that precede it: a sufficient reason must be one analogous to the discovery of new and important matter, or to an error apparent on the face of the record. It is not every subsequent development that a litigant finds inconvenient, nor every change of heart, nor every occurrence arising after judgment in the course of its implementation, that qualifies. Were it otherwise, no judgment of this Court, however carefully considered, would ever attain finality; it would remain permanently hostage to whatever administrative or personal circumstance might later arise to be pressed into service as a ground for its undoing.
16. It was candidly submitted before me by Mr Mwanzia, learned Counsel for the Applicant, that the application is anchored on only one of the three grounds available under Order 45 — sufficient reason — and not on the discovery of new and important matter, nor on any error apparent on the face of the record. That concession, properly made, is nonetheless fatal to the application, and for a reason more fundamental than Counsel may have appreciated. The promotions of the five Board members into management, upon which the entire edifice of the Applicant's complaint rests, occurred, on her own account, after the delivery of the Judgment. A fact that did not exist at the time a judgment was delivered cannot, by definition, have been "discovered" within the meaning of the first limb of Order 45, for there was nothing in existence to discover; nor can it constitute an error on the face of a record that pre-dates its occurrence. To succeed on the residual ground of sufficient reason, the ground relied upon must nonetheless share the essential character of the two specified grounds — namely, that it points to something that existed, undiscovered, at the time of judgment, or to a self-evident flaw already inherent in the judgment itself. A post-judgment supervening event, however genuinely disruptive to a party's plans for compliance, simply does not answer that description. It is, at highest, a matter going to the implementation and enforcement of the Judgment — precisely the province this Court has already occupied through the Ruling of 30th July 2026 and, as I come to next, through the Ruling in Cause No. E066 of 2026 — and not a matter capable of unsettling the Judgment itself. The application, resting as it does on a single ground that is not, on analysis, analogous to either of the two specified grounds under Order 45, discloses no sufficient basis for review.
(iii) Res judicata
17. Even had the Applicant cleared that first hurdle, a second and independent difficulty confronts her: this is not the first occasion on which this precise complaint has been placed before this Court. Section 7 of the Civil Procedure Act bars the trial of any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or parties litigating under the same title, in a court competent to try it, and has been heard and finally decided by that court. Courts in Kenya have, moreover, applied the doctrine with a broader and more purposive eye where necessary to prevent the mischief it exists to guard against — the vexation of a party by repeated litigation of the same complaint dressed in different clothing, and the erosion of finality that is indispensable to any functioning system of justice. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal recognised res judicata as a doctrine of public policy that will be applied to prevent the abuse that arises where a litigant, having failed to obtain relief before one forum or in one proceeding, seeks to reopen the identical question before another. The Supreme Court, in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & 3 Others [2021] eKLR, explained that the doctrine exists precisely to protect the finality of litigation and to shield parties, and the court itself, from the harassment of having to answer the same complaint over and over.
18. The composition of the Election Board, and the eligibility of its members following their promotion into management, was first raised — not by the Applicant directly, but on behalf of the very camp of interested parties to which she belongs, then represented by the firm of advocates that had, at the material time, taken over conduct of these proceedings on behalf of the Interested Parties — through the Supplementary Affidavit filed in support of the application for stay. That complaint was noted but left undetermined by the Ruling of 20th July 2026, expressly on the footing that it required ventilation in "another, more appropriate forum." It was then taken up, by the 2nd Respondent personally, in ELRC Cause No. E066 of 2026, where it was fully argued and substantively determined by the Ruling of 31st July 2026. That Ruling did not merely decline, on discretionary grounds, to restrain the reconstituted Board; it examined, and rejected, the very premise now repeated before me — that the direction requiring "the Election Board that was in office before the sham elections" to conduct the fresh elections falls to be assessed against the Board's composition as it evolves over time rather than as it stood immediately before the impugned election; that the Union's Constitution disqualifies a Board member upon promotion into management, a proposition for which the Court found no support in Article 15 of the Union's Constitution, which in terms contemplates service on the Board even by persons who are not members of the Union at all; and that the Board, absent any complaint of incapacity from within its own ranks, could properly be restrained from completing the task assigned to it by the Judgment.
19. The Applicant's own Supplementary Affidavit does not shy from this history; if anything, it confirms it. She avers, in terms, that "the court dealt with the issue of the composition of the election Board in ELRC Petition No. E066 of 2026," seeking to save her application only by the assertion that the conflict-of-interest dimension of that same complaint was not there determined, and that this Court had indicated the present Petition, rather than a separate suit, was the proper venue. That is a distinction without a difference. The substance of what the Applicant now presses — that persons drawn from management cannot properly discharge the Board's mandate because their interests are structurally opposed to those of the unionisable membership the Union exists to protect — is not a new complaint dressed in unfamiliar clothes; it is the identical complaint concerning the Board's fitness to act, viewed from a different angle. A litigant does not escape the reach of res judicata merely by recasting an argument that has already been advanced, and rejected, under a different label. To permit that would be to reduce the doctrine to a formality defeated by the ingenuity of counsel rather than a safeguard of the integrity of the judicial process. I find, applying the elements of Section 7 of the Civil Procedure Act with the purposive reading endorsed in Maina Kiai, that the matter now agitated is, in all material respects, the same matter already directly and substantially determined between parties litigating, in substance, under the same title and interest, by a court of competent jurisdiction, in the Ruling delivered in Cause No. E066 of 2026. The present application is accordingly res judicata. Even were I wrong in that strict conclusion, I would in any event find the application to be a plain abuse of the process of this Court, brought to achieve, through a third attempt, what could not be secured through the first two.
(iv) The belated ground of conflict of interest
20. I turn to the point urged, with some emphasis, by Mr Mwanzia in submissions — that the Election Board is conflicted because its members, and those replacing the promoted members, are drawn from management. It is necessary to be plain about where, and how, this ground surfaced. It does not appear among the grounds set out on the face of the Notice of Motion dated 24th July 2026. It does not appear in the Applicant's founding affidavit of the same date, which confines itself, as set out above, to the quorum and composition complaint. It appears for the first time in the Supplementary Affidavit sworn nearly three weeks later, after the Respondents had already filed their opposition — and it is thereafter given its fullest and most pointed articulation not in any affidavit at all, but in Counsel's submissions.
21. That sequence matters. Submissions are argument; they are not evidence, and they cannot supply the factual and legal foundation that ought properly to appear in the pleadings and the supporting affidavit upon which an application is brought. A respondent is entitled to know, from the face of the originating process, the case it is called upon to meet; it cannot be expected to answer a case that mutates, ground by ground, as the application proceeds, still less a case whose most emphatic articulation arrives only at the podium. Where, as here, a ground was neither pleaded in the Motion nor deposed to in the affidavit filed in its support, and surfaces only later — and, on the analysis at paragraph 13 above, without the leave that its late introduction required — it cannot be treated as though it had been properly placed before the Court from the outset. Counsel's strategic shift of emphasis toward conflict of interest, however skilfully argued, cannot cure that defect; an application must stand or fall on the grounds and evidence properly placed before the Court, not on the persuasiveness of the advocacy deployed in its support.
22. In any event, and for completeness, the conflict-of-interest argument does not, on its merits, advance the Applicant's position any further than the composition argument already rejected in Cause No. E066 of 2026. Stripped of its label, the complaint is that persons connected to management are, by virtue of that connection, incapable of impartially discharging the Board's electoral mandate — which is simply the incompetence-of-the-Board argument revisited from the standpoint of interest rather than eligibility. The underlying premise — that the Union's Constitution disqualifies from Board service persons who are not, strictly, unionisable — has already been examined and found wanting, Article 15 of the Union's Constitution containing no such disqualification and indeed expressly contemplating service by persons who are not members of the Union at all. A complaint that shares its factual and legal root with a matter already determined does not acquire independent vitality merely because it is given a different name.
(v) The Notice of Appeal and the pending Court of Appeal proceedings
23. It is not in dispute — indeed, the Applicant admits as much in her own affidavit — that she filed a Notice of Appeal against the Judgment of 17th June 2026, and against that Judgment in its entirety. It is necessary to say something of what that step signifies. A Notice of Appeal is not a mere formality or a placeholder of no legal consequence; it is the foundational document by which a litigant invokes the appellate jurisdiction of a superior court, and it is that document, once filed, that clothes the appellate court with jurisdiction to entertain interlocutory applications incidental to the appeal it foreshadows, including applications for stay of execution. The Court of Appeal has repeatedly held that, for purposes of its jurisdiction to grant such interlocutory relief, a Notice of Appeal is treated as constituting an appeal, notwithstanding that the memorandum of appeal itself may not yet have been filed. In Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR, the Court of Appeal affirmed that the filing of a Notice of Appeal suffices to found its jurisdiction to grant orders in aid of an intended appeal, precisely because, from that point on, the matter is properly regarded as pending before the appellate court. It follows that once the Applicant filed her Notice of Appeal, the Judgment of 17th June 2026 became, in every meaningful sense, a matter live on appeal, whatever the eventual fate of a formal memorandum of appeal.
24. It is that very Notice of Appeal which furnished the Applicant with her foundational basis for moving the Court of Appeal, in Civil Application No. E088 of 2026, seeking a stay of execution of the orders of this Court pending the determination of her intended appeal. That application remains pending before the Court of Appeal. It follows, ineluctably, that the proceedings touching the Judgment of 17th June 2026 are, at this very moment, live before a superior court. It is not proper for the Applicant, in those circumstances, to engage this Court in the manner she has — inviting it, through review, to reconsider and unsettle the very Judgment whose stay she simultaneously pursues at the Court of Appeal. She is, in substance, engaging two forums at once, in respect of the same subject matter, in the hope that one or the other will yield her relief. That is not a permissible litigation strategy. It exposes the parties, and the two courts, to the real risk of arriving at inconsistent outcomes touching the same Judgment; it offends the principle, well settled in this jurisdiction, that a litigant may not approbate and reprobate — may not, in one forum, treat a judgment as one she intends to have set aside on appeal, while in another treating it as one open to revision through review, according to whichever avenue appears, at any given moment, the more promising (National Bank of Kenya Limited v Wilson Ndolo Ayah [2009] eKLR); and it disregards the ordinary hierarchy and comity that must govern the relationship between a trial court and the appellate court seized of a matter arising from its own decision.
25. Nor can the Applicant extricate herself from that difficulty by the simple expedient of deposing, in an affidavit filed in this Court, that she has "abandoned" her interest in the appeal. Nothing on the record before me suggests that she has taken the one step that would actually terminate the appellate proceedings she set in motion — a formal notice of withdrawal filed with, and accepted by, the Court of Appeal itself. An averment made to this Court, in a forum other than the one seized of the appeal, does not reach the Court of Appeal, does not appear on its record, and has no effect whatsoever on the proceedings pending before it, including Civil Application No. E088 of 2026, which remains, on the material before me, alive. Until the Applicant takes the formal step of withdrawing her Notice of Appeal and any application founded upon it, this Court must proceed on the footing that the matter remains squarely before the Court of Appeal, and that this Motion, seeking substantially overlapping relief from a court whose decision is already under appellate challenge, is for that reason alone improperly before me.
(vi) The allegation concerning the Chairperson's eligibility
26. I should say something, finally, of the suggestion, raised in submissions, that the National Chairperson of the Union is presently facing disciplinary proceedings, and that this in some way bears upon the propriety of the electoral process now under challenge. Even taking that assertion at its highest and treating it as true for present purposes, it does not assist the Applicant. The Constitution of the Union, as placed before this Court, does not prescribe the pendency of disciplinary proceedings, whether against the Chairperson or any other office-bearer, as a ground of ineligibility or disqualification. A court cannot import into a constitutive instrument a disqualification the framers of that instrument did not themselves see fit to include; to d
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A. INTRODUCTION
1. A judgment of this Court, once delivered, is not a proposition left open for indefinite renegotiation at the instance of a party who finds its consequences inconvenient. The jurisdiction to review a judgment is a narrow and jealously guarded exception to the ordinary rule that a court, having pronounced its final decision, becomes functus officio in relation to it. That jurisdiction exists to correct a manifest injustice traceable to matters that pre-dated the judgment and which eluded the diligence of the party now invoking it, or to correct an error self-evident on the face of the record. It was never intended to furnish a disappointed litigant, or one aligned with a disappointed litigant, a fresh forum in which to re-argue a cause already determined, still less to accommodate every development that surfaces in the course of implementing an order that has since acquired full legal force. It is against that settled learning that the application now before me falls to be examined.
2. By a Notice of Motion dated 24th July 2026, brought under Article 159 of the Constitution of Kenya, 2010, Order 45 of the Civil Procedure Rules, 2010, Sections 1A and 1B of the Civil Procedure Act, and the inherent jurisdiction of this Court, the 5th Interested Party, Kibiby Omeri ("the Applicant"), seeks, in substance, two things: first, an interim stay of order (ii) of the Judgment of this Court delivered on 17th June 2026, pending the hearing and determination of the Motion; and second, a review — expressly restricted to order (iv) of that Judgment — touching the composition and continued capacity of the Election Board directed to conduct and oversee the fresh elections of the 1st Interested Party, the Dock Workers Union ("the Union"). The Motion is resisted, with equal conviction, by the 1st and 2nd Petitioners and by the 3rd Petitioner.
B. THE HISTORY OF THE CONTROVERSY
3. The application does not arise in a vacuum, and its history bears directly on its disposal. By the Judgment delivered on 17th June 2026, this Court found that the purported election of the Union's national officials held on 4th April 2026 had been conducted in disregard of the Union's Constitution and of the democratic values enshrined in Articles 10 and 41 of the Constitution of Kenya. The Court declared that election a sham, nullified it in its entirety together with the registration of the officials purportedly returned, and directed that fresh elections be conducted within sixty days — to be conducted and overseen by the Election Board that had been in office immediately before that sham election.
4. That outcome did not rest easily with the 2nd Respondent, Sulman Otieno Owuor, whose purported election as General Secretary the Judgment had unmade. He, together with certain Interested Parties, moved this Court for a stay of execution of the Judgment pending an intended appeal. By a Ruling delivered on 20th July 2026, this Court declined that prayer, holding that the Judgment remained valid, binding and in full force; that a nullity pronounced ab initio could not sensibly be preserved in suspended animation by an order of stay; and that the public interest in the timely and lawful governance of a Union of several thousand members weighed decisively against further delay. It bears noting, for what follows, that it was in that very application, through Supplementary Affidavits filed in its support, that the composition of the Election Board was raised for the first time — on the footing that some of its members had, since their original appointment, been elevated to management positions with their employer. The Court took note of that complaint but declined to determine it, holding that it had not been properly pleaded or ventilated in a manner permitting determination at that interlocutory stage, and that it fell to be canvassed in another, more appropriate forum.
5. The 2nd Respondent's resistance to compliance persisted. Upon an application by the 3rd Petitioner for implementation and enforcement directions, this Court found, by a Ruling delivered on 30th July 2026, that the 2nd Respondent's conduct had placed the sixty-day compliance period at real risk of lapsing without compliance, and accordingly issued specific implementation directions in favour of the National Executive Committee and the National Chairperson of the Union, calculated to ensure that the electoral process the Judgment had set in motion was not stifled by further obstruction.
6. It is against that detailed, and by now extensively litigated, background that the Applicant brings the present Motion.
C. THE APPLICATION AND ITS GROUNDS
7. By the Notice of Motion dated 24th July 2026, supported by the Applicant's affidavit sworn on even date and later amplified by a Supplementary Affidavit sworn on 11th August 2026, the Applicant seeks orders: that the Motion be certified urgent; that, pending its hearing and determination, order (ii) of the Judgment — requiring the conduct of fresh elections — be stayed; that this Court review order (iv) of the Judgment and issue such orders or directions as will ensure that the fresh elections are conducted in accordance with the Union's Constitution; and costs.
8. The grounds on the face of the Motion, repeated in the founding affidavit, are these. Of the nine members of the Election Board directed by the Judgment to conduct and oversee the fresh elections, five — Yvonne Ngutu, Marco Aden, Joshua Kasera, Rajab Musa and Edwin Berech — have since been elevated to management positions within the Kenya Ports Authority and can, on that account, no longer participate in union affairs; only Frederick Bayah, Karimu Mwendo and James Kazungu remain eligible; the Board, so depleted, lacks the quorum prescribed by the Union's Constitution to conduct and oversee elections; the Acting Registrar of Trade Unions raised the identical concern in a letter dated 9th July 2026; and, given the diminishing sixty-day compliance period, the matter required urgent attention. On that footing, the Applicant asks the Court to review the Judgment, there being, in her submission, sufficient reason to do so.
9. The Supplementary Affidavit sworn on 11th August 2026 — filed, it must be observed, only after the Respondents had already put in their opposition to the Motion — introduces, for the first time, a further and distinct complaint. The Applicant now avers that the Election Board, even shorn of the five members said to have been promoted, remains conflicted, in that its remaining and prospective members are drawn from management, whereas the very object of the Union is to protect unionisable employees from the excesses of that same management; that the Board has, in preparing for the fresh elections, summarily excluded her from the ballot by declaring the position of National Treasurer — for which she is a contestant — unopposed; that the persons said to give rise to the conflict had in fact left the Union some two years before the impugned election of 4th April 2026, which she says explains the need to reconstitute the Board before elections could proceed; and that, while the Union's Constitution permits non-members to sit on the Election Board, it does not extend to persons conflicted by reason of holding managerial office or office in a rival union. She further avers that, although this Court has already pronounced upon the composition of the Election Board in ELRC Cause No. E066 of 2026, it did not, in her submission, determine the distinct question of conflict of interest, and that the Court had itself indicated that the proper forum for these matters was the present Petition rather than a separate suit. Finally, she avers that she has abandoned any interest in pursuing an appeal against the Judgment, and that nothing therefore bars her from seeking its review.
D. THE OPPOSITION
10. The 1st and 2nd Petitioners oppose the Motion through the Replying Affidavit of the 1st Petitioner, Matano Omar Shakombo, sworn on 11th August 2026. It is deposed that the Applicant has moved the Court of Appeal, in Civil Application No. E088 of 2026, seeking a stay of the very orders of this Court now sought to be reviewed, without disclosing that pending application to this Court, and has thereby approached this Court other than with clean hands; that the Applicant's own affidavit admits to having lodged an appeal against the Judgment in its entirety; that the issues she now raises were already placed before this Court, on behalf of her side of the dispute, through the Supplementary Affidavit filed in the very application determined by the Ruling of 20th July 2026, such that the matter is functus officio and the present application res judicata; and that the Applicant was, well before instructing her present advocates, fully alive to the matters she now raises, they having already been canvassed on her behalf by her then advocates on record. The 1st and 2nd Petitioners contend that the Motion is bad in law, an abuse of the process of the Court, and vexatious, and pray that it be dismissed with costs.
11. The 3rd Petitioner, Justine Muranja Angore, opposes the Motion through a Notice of Preliminary Objection and Grounds of Opposition dated 30th July 2026, and written submissions dated 10th August 2026. The burden of his opposition is that the Judgment of 17th June 2026 finally and conclusively determined, after a full hearing on the merits, that the election of 4th April 2026 was null and void, and that none of the substantive findings underlying that conclusion has been shown to be erroneous; that the Applicant's complaint rests entirely on an administrative change in the employment status of certain Board members occurring after the Judgment, and discloses neither an error apparent on the face of the record nor any proper ground for review; that the very issue now relied upon has already been placed before, and substantively addressed by, this Court in ELRC Cause No. E066 of 2026, in which, by a Ruling delivered on 31st July 2026, the Court declined to restrain the reconstituted Election Board from proceeding with the fresh elections and expressly permitted it to do so pending the final determination of that Cause; that the present Motion is accordingly duplicative of relief already sought and declined; that the Applicant's own affidavit is internally inconsistent, professing no interest in pursuing an appeal while simultaneously seeking, through review, precisely the suspension of the Judgment an appeal would ordinarily be intended to secure; and that granting the orders sought would unjustifiably delay elections to which some 5,742 members of the Union are constitutionally entitled, under Article 41 of the Constitution, to have conducted fairly, freely, and without further impediment. The 3rd Petitioner prays that the Motion be dismissed with costs.
E. ISSUES FOR DETERMINATION
12. The following issues arise for determination:
(a) whether the Supplementary Affidavit sworn on 11th August 2026, and the ground of conflict of interest raised in it for the first time, are properly before the Court;
(b) what the applicable conditions for review under Order 45 of the Civil Procedure Rules are, and whether the Applicant has satisfied them;
(c) whether the application is, in any event, barred by the doctrine of res judicata;
(d) whether the pendency of the Applicant's Notice of Appeal, and of Court of Appeal Civil Application No. E088 of 2026, renders the present Motion improper; and
(e) whether the allegation that the Chairperson faces disciplinary proceedings bears on his eligibility to hold office.
F. ANALYSIS AND DETERMINATION
(i) The late introduction of new grounds by supplementary affidavit
13. I deal first with a threshold matter. This Court's rules, and the overriding objective that animates them under Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act, undoubtedly clothe the Court with wide case-management powers, including the power to permit the filing of documents, and indeed additional documents, at various stages of a proceeding where the interests of substantive justice so demand. That liberality, however, is not unbounded, and it contracts markedly once an application has been filed, setting forth detailed grounds on the face of it and in the supporting affidavit and the application duly responded to by the adversaries Once this is done, the Applicant may not, as of right, reopen the evidential record by the simple expedient of filing a further affidavit. That the Applicant did so without leave, and without any attempt to justify the lateness of the new material, is itself telling, and I return to its consequences below.
(ii) The conditions for review under Order 45
14. Order 45 Rule 1 of the Civil Procedure Rules, 2010, read with Section 80 of the Civil Procedure Act, permits any person considering himself aggrieved by a decree or order to apply for review on one of three grounds: the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time the decree or order was passed; some mistake or error apparent on the face of the record; or any other sufficient reason. The Court of Appeal, in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, affirmed that these are the only grounds upon which the jurisdiction to review may be exercised, and that a review is not an appeal in disguise enabling an unsuccessful party to reargue its case in the hope of a different outcome.
15. The third limb — "sufficient reason" — has never been left at large. In Nyamogo & Nyamogo Advocates v Kogo [2001] 1EA 173, it was held that the phrase must be construed ejusdem generis with the two grounds that precede it: a sufficient reason must be one analogous to the discovery of new and important matter, or to an error apparent on the face of the record. It is not every subsequent development that a litigant finds inconvenient, nor every change of heart, nor every occurrence arising after judgment in the course of its implementation, that qualifies. Were it otherwise, no judgment of this Court, however carefully considered, would ever attain finality; it would remain permanently hostage to whatever administrative or personal circumstance might later arise to be pressed into service as a ground for its undoing.
16. It was candidly submitted before me by Mr Mwanzia, learned Counsel for the Applicant, that the application is anchored on only one of the three grounds available under Order 45 — sufficient reason — and not on the discovery of new and important matter, nor on any error apparent on the face of the record. That concession, properly made, is nonetheless fatal to the application, and for a reason more fundamental than Counsel may have appreciated. The promotions of the five Board members into management, upon which the entire edifice of the Applicant's complaint rests, occurred, on her own account, after the delivery of the Judgment. A fact that did not exist at the time a judgment was delivered cannot, by definition, have been "discovered" within the meaning of the first limb of Order 45, for there was nothing in existence to discover; nor can it constitute an error on the face of a record that pre-dates its occurrence. To succeed on the residual ground of sufficient reason, the ground relied upon must nonetheless share the essential character of the two specified grounds — namely, that it points to something that existed, undiscovered, at the time of judgment, or to a self-evident flaw already inherent in the judgment itself. A post-judgment supervening event, however genuinely disruptive to a party's plans for compliance, simply does not answer that description. It is, at highest, a matter going to the implementation and enforcement of the Judgment — precisely the province this Court has already occupied through the Ruling of 30th July 2026 and, as I come to next, through the Ruling in Cause No. E066 of 2026 — and not a matter capable of unsettling the Judgment itself. The application, resting as it does on a single ground that is not, on analysis, analogous to either of the two specified grounds under Order 45, discloses no sufficient basis for review.
(iii) Res judicata
17. Even had the Applicant cleared that first hurdle, a second and independent difficulty confronts her: this is not the first occasion on which this precise complaint has been placed before this Court. Section 7 of the Civil Procedure Act bars the trial of any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or parties litigating under the same title, in a court competent to try it, and has been heard and finally decided by that court. Courts in Kenya have, moreover, applied the doctrine with a broader and more purposive eye where necessary to prevent the mischief it exists to guard against — the vexation of a party by repeated litigation of the same complaint dressed in different clothing, and the erosion of finality that is indispensable to any functioning system of justice. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal recognised res judicata as a doctrine of public policy that will be applied to prevent the abuse that arises where a litigant, having failed to obtain relief before one forum or in one proceeding, seeks to reopen the identical question before another. The Supreme Court, in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & 3 Others [2021] eKLR, explained that the doctrine exists precisely to protect the finality of litigation and to shield parties, and the court itself, from the harassment of having to answer the same complaint over and over.
18. The composition of the Election Board, and the eligibility of its members following their promotion into management, was first raised — not by the Applicant directly, but on behalf of the very camp of interested parties to which she belongs, then represented by the firm of advocates that had, at the material time, taken over conduct of these proceedings on behalf of the Interested Parties — through the Supplementary Affidavit filed in support of the application for stay. That complaint was noted but left undetermined by the Ruling of 20th July 2026, expressly on the footing that it required ventilation in "another, more appropriate forum." It was then taken up, by the 2nd Respondent personally, in ELRC Cause No. E066 of 2026, where it was fully argued and substantively determined by the Ruling of 31st July 2026. That Ruling did not merely decline, on discretionary grounds, to restrain the reconstituted Board; it examined, and rejected, the very premise now repeated before me — that the direction requiring "the Election Board that was in office before the sham elections" to conduct the fresh elections falls to be assessed against the Board's composition as it evolves over time rather than as it stood immediately before the impugned election; that the Union's Constitution disqualifies a Board member upon promotion into management, a proposition for which the Court found no support in Article 15 of the Union's Constitution, which in terms contemplates service on the Board even by persons who are not members of the Union at all; and that the Board, absent any complaint of incapacity from within its own ranks, could properly be restrained from completing the task assigned to it by the Judgment.
19. The Applicant's own Supplementary Affidavit does not shy from this history; if anything, it confirms it. She avers, in terms, that "the court dealt with the issue of the composition of the election Board in ELRC Petition No. E066 of 2026," seeking to save her application only by the assertion that the conflict-of-interest dimension of that same complaint was not there determined, and that this Court had indicated the present Petition, rather than a separate suit, was the proper venue. That is a distinction without a difference. The substance of what the Applicant now presses — that persons drawn from management cannot properly discharge the Board's mandate because their interests are structurally opposed to those of the unionisable membership the Union exists to protect — is not a new complaint dressed in unfamiliar clothes; it is the identical complaint concerning the Board's fitness to act, viewed from a different angle. A litigant does not escape the reach of res judicata merely by recasting an argument that has already been advanced, and rejected, under a different label. To permit that would be to reduce the doctrine to a formality defeated by the ingenuity of counsel rather than a safeguard of the integrity of the judicial process. I find, applying the elements of Section 7 of the Civil Procedure Act with the purposive reading endorsed in Maina Kiai, that the matter now agitated is, in all material respects, the same matter already directly and substantially determined between parties litigating, in substance, under the same title and interest, by a court of competent jurisdiction, in the Ruling delivered in Cause No. E066 of 2026. The present application is accordingly res judicata. Even were I wrong in that strict conclusion, I would in any event find the application to be a plain abuse of the process of this Court, brought to achieve, through a third attempt, what could not be secured through the first two.
(iv) The belated ground of conflict of interest
20. I turn to the point urged, with some emphasis, by Mr Mwanzia in submissions — that the Election Board is conflicted because its members, and those replacing the promoted members, are drawn from management. It is necessary to be plain about where, and how, this ground surfaced. It does not appear among the grounds set out on the face of the Notice of Motion dated 24th July 2026. It does not appear in the Applicant's founding affidavit of the same date, which confines itself, as set out above, to the quorum and composition complaint. It appears for the first time in the Supplementary Affidavit sworn nearly three weeks later, after the Respondents had already filed their opposition — and it is thereafter given its fullest and most pointed articulation not in any affidavit at all, but in Counsel's submissions.
21. That sequence matters. Submissions are argument; they are not evidence, and they cannot supply the factual and legal foundation that ought properly to appear in the pleadings and the supporting affidavit upon which an application is brought. A respondent is entitled to know, from the face of the originating process, the case it is called upon to meet; it cannot be expected to answer a case that mutates, ground by ground, as the application proceeds, still less a case whose most emphatic articulation arrives only at the podium. Where, as here, a ground was neither pleaded in the Motion nor deposed to in the affidavit filed in its support, and surfaces only later — and, on the analysis at paragraph 13 above, without the leave that its late introduction required — it cannot be treated as though it had been properly placed before the Court from the outset. Counsel's strategic shift of emphasis toward conflict of interest, however skilfully argued, cannot cure that defect; an application must stand or fall on the grounds and evidence properly placed before the Court, not on the persuasiveness of the advocacy deployed in its support.
22. In any event, and for completeness, the conflict-of-interest argument does not, on its merits, advance the Applicant's position any further than the composition argument already rejected in Cause No. E066 of 2026. Stripped of its label, the complaint is that persons connected to management are, by virtue of that connection, incapable of impartially discharging the Board's electoral mandate — which is simply the incompetence-of-the-Board argument revisited from the standpoint of interest rather than eligibility. The underlying premise — that the Union's Constitution disqualifies from Board service persons who are not, strictly, unionisable — has already been examined and found wanting, Article 15 of the Union's Constitution containing no such disqualification and indeed expressly contemplating service by persons who are not members of the Union at all. A complaint that shares its factual and legal root with a matter already determined does not acquire independent vitality merely because it is given a different name.
(v) The Notice of Appeal and the pending Court of Appeal proceedings
23. It is not in dispute — indeed, the Applicant admits as much in her own affidavit — that she filed a Notice of Appeal against the Judgment of 17th June 2026, and against that Judgment in its entirety. It is necessary to say something of what that step signifies. A Notice of Appeal is not a mere formality or a placeholder of no legal consequence; it is the foundational document by which a litigant invokes the appellate jurisdiction of a superior court, and it is that document, once filed, that clothes the appellate court with jurisdiction to entertain interlocutory applications incidental to the appeal it foreshadows, including applications for stay of execution. The Court of Appeal has repeatedly held that, for purposes of its jurisdiction to grant such interlocutory relief, a Notice of Appeal is treated as constituting an appeal, notwithstanding that the memorandum of appeal itself may not yet have been filed. In Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR, the Court of Appeal affirmed that the filing of a Notice of Appeal suffices to found its jurisdiction to grant orders in aid of an intended appeal, precisely because, from that point on, the matter is properly regarded as pending before the appellate court. It follows that once the Applicant filed her Notice of Appeal, the Judgment of 17th June 2026 became, in every meaningful sense, a matter live on appeal, whatever the eventual fate of a formal memorandum of appeal.
24. It is that very Notice of Appeal which furnished the Applicant with her foundational basis for moving the Court of Appeal, in Civil Application No. E088 of 2026, seeking a stay of execution of the orders of this Court pending the determination of her intended appeal. That application remains pending before the Court of Appeal. It follows, ineluctably, that the proceedings touching the Judgment of 17th June 2026 are, at this very moment, live before a superior court. It is not proper for the Applicant, in those circumstances, to engage this Court in the manner she has — inviting it, through review, to reconsider and unsettle the very Judgment whose stay she simultaneously pursues at the Court of Appeal. She is, in substance, engaging two forums at once, in respect of the same subject matter, in the hope that one or the other will yield her relief. That is not a permissible litigation strategy. It exposes the parties, and the two courts, to the real risk of arriving at inconsistent outcomes touching the same Judgment; it offends the principle, well settled in this jurisdiction, that a litigant may not approbate and reprobate — may not, in one forum, treat a judgment as one she intends to have set aside on appeal, while in another treating it as one open to revision through review, according to whichever avenue appears, at any given moment, the more promising (National Bank of Kenya Limited v Wilson Ndolo Ayah [2009] eKLR); and it disregards the ordinary hierarchy and comity that must govern the relationship between a trial court and the appellate court seized of a matter arising from its own decision.
25. Nor can the Applicant extricate herself from that difficulty by the simple expedient of deposing, in an affidavit filed in this Court, that she has "abandoned" her interest in the appeal. Nothing on the record before me suggests that she has taken the one step that would actually terminate the appellate proceedings she set in motion — a formal notice of withdrawal filed with, and accepted by, the Court of Appeal itself. An averment made to this Court, in a forum other than the one seized of the appeal, does not reach the Court of Appeal, does not appear on its record, and has no effect whatsoever on the proceedings pending before it, including Civil Application No. E088 of 2026, which remains, on the material before me, alive. Until the Applicant takes the formal step of withdrawing her Notice of Appeal and any application founded upon it, this Court must proceed on the footing that the matter remains squarely before the Court of Appeal, and that this Motion, seeking substantially overlapping relief from a court whose decision is already under appellate challenge, is for that reason alone improperly before me.
(vi) The allegation concerning the Chairperson's eligibility
26. I should say something, finally, of the suggestion, raised in submissions, that the National Chairperson of the Union is presently facing disciplinary proceedings, and that this in some way bears upon the propriety of the electoral process now under challenge. Even taking that assertion at its highest and treating it as true for present purposes, it does not assist the Applicant. The Constitution of the Union, as placed before this Court, does not prescribe the pendency of disciplinary proceedings, whether against the Chairperson or any other office-bearer, as a ground of ineligibility or disqualification. A court cannot import into a constitutive instrument a disqualification the framers of that instrument did not themselves see fit to include; to d
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